United States District Court, D. Massachusetts
DANA E. LOPES, Plaintiff,
GERALDINE RIENDEAU, et al, Defendants.
MEMORANDUM AND ORDER
Nathaniel M. Gorton United States District Judge
instant pro se action was filed on February 24,
2014, by Plaintiff Dana E. Lopes (“Lopes”), an
inmate in custody of the Massachusetts Department of
Correction. Plaintiff's original complaint alleges
retaliation and a denial of medical care under 42 U.S.C.
§ 1983 and state law against nine defendants. Some of
the defendants, as well as some of Plaintiff's claims,
have been dismissed. This case has a lengthy history and the
facts and procedural history have been recounted in earlier
orders and need not be repeated here.
before this Court are motions for summary judgment under
Fed.R.Civ.P. 56 (“Rule 56”) filed by defendants
Barbara Berg (“Berg”); Dyana Nickl
(“Nickl”) and Geraldine Riendeau
(“Riendeau”); and Paul Caratazzola
(“Caratazzola”), Patricia Davenport-Mello
(“Davenport”) and Massachusetts Partnership for
Correctional Healthcare (“MPCH”) (collectively
“MPCH defendants”). See Docket Nos. 137,
147 and 153. Also pending before this Court is a letter from
Lopes requesting appointment of counsel. See Docket
Plaintiff's Request for Appointment of
seeks to have this Court appoint counsel to represent him in
this matter. See Docket No. 152. The letter, signed
by Lopes on July 6, 2016, was filed before Lopes was served
with defendants' motions for summary judgment. The letter
states, among other things, that he has unsuccessfully sought
appointment of counsel twice and that the inmate that had
assisted Lopes is no longer assisting him. At the time of the
letter, Lopes had returned from major back surgery at Boston
Medical Center and was “sick with cancer of [his] liver
still and not doing well at all.” Lopes states that he
has a ninth grade education and doesn't “know
anything about law [himself and he doesn't] read or
understand the laws of this Court.”
explained in earlier orders, indigent civil litigants possess
neither a constitutional nor a statutory right to free
counsel. Under 28 U.S.C. § 1915(e)(1), the Court has the
discretion to appoint counsel “for any person unable to
afford counsel.” 28 U.S.C. §
1915(e)(1). In order to obtain appointed counsel, a
party must show indigency and exceptional circumstances.
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir.
1991). Here, Lopes has been permitted to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. See
Docket No. 5.
respect to exceptional circumstances, a court
“examine[s] the total situation, focusing, inter alia,
on the merits of the case, the complexity of the legal
issues, and the litigant's ability to represent
himself.” DesRosiers v. Moran, 949 F.2d at 23;
see Weir v. Potter, 214 F.Supp.2d 53, 54 (D. Mass.
2002) (in assessing whether exceptional circumstances exist
to warrant appointment, courts consider “merits of the
case, the litigant's capability of conducting a factual
inquiry, the complexity of the legal and factual issues, and
the ability of the litigant to represent [him]self”).
denying one of Lopes' requests for counsel, Magistrate
Judge Marianne B. Bowler noted that the factual issues are
not complex and “involve a discrete set of facts
regarding medical care and alleged retaliation.”
See 03/03/16 Memorandum and Order, Docket No. 121.
The Court notes that the March 3, 2016 Report and
Recommendation delineates the legal standards applicable to
Section 1983 retaliation and inadequate medical care claims.
See Docket No. 120.
Lopes' request for appointment of counsel is denied and
he will be granted an opportunity to respond to
defendants' motions for summary judgment.
Defendants' Motions for Summary
recently, the Court granted, solely as to Nasuti, the MPCH
defendants' motion for judgment on the pleadings (Docket
No. 97) and allowed Riendeau and Nickl's motion for
summary judgment (Docket No. 99) as to the Section 1983
Eighth Amendment and retaliation claims. See
3/30/2016 Order (Docket No. 125) adopting in part, rejecting
in part 3/3/16 Report and Recommendation. The instant motions
for summary judgment ask the Court to make a final judgment
dismissing the remaining claims in this action. See
Docket Nos. 137, 147 and 153. Lopes will be granted an
opportunity to address these motions, and if he chooses not
to file a response, the Court may consider the motions based
on the record before it. Cordi-Allen v. Halloran,
470 F.3d 25, 28 (1st Cir. 2006).
will be granted the opportunity to respond to the
defendants' assertion of facts as required by
Fed.R.Civ.P. 56(c) and Local Rule 56.1. In order to prepare a
concise statement of material facts, Lopes' shall admit
and/or deny each of the defendants' statements in
matching numbered paragraphs.In certain circumstances, instead
of admitting or denying a statement of material fact,
Plaintiff may dispute it by “showing that the
materials cited [by the defendants] do not establish the
absence...of a genuine dispute [of fact].” Federal Rule
of Civil Procedure 56(c)(1)(B) (emphasis added).
plaintiff files a statement of material facts, the defendants
will be ...